We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A DISTINCTION WITH A DIFFERENCE

Clint Rumley had amassed quite a record by the time he was convicted of being a felon in possession of a gun under 18 USC 922(g)(1). He had over 20 prior state convictions, with five of them eligible predicate crimes of violence or drug offenses that would let the district court sentence him to a minimum 15 years under the Armed Career Criminal Act. Clint’s presentence report identified four of the prior convictions as supporting the ACCA sentence enhancement, one more than the minimum three priors called for by the ACCA.

When Johnson v. United States – a 2015 Supreme Court case that substantially narrowed what crimes could be considered crimes of violence – came along seven years into Clint’s 15-year sentence, he filed a post-conviction motion under 28 USC § 2255 to have his ACCA sentence set aside. The district court agreed with Clint that two of the four predicate convictions identified in the presentence report no longer counted, and vacated his 15-year sentence. But when Clint was resentenced, the new PSR noted that one state conviction not previously relied on for as qualifying as an ACCA predicate should have been counted against him. That conviction, plus the two priors that remained crimes of violence under the ACCA, got Clint resentenced to 15 years.

Clint appealed, relying on a 4th Circuit decision, United States v. Hodge. Hodge held that the government was not allowed to oppose a 28 USC 2255 motion raising Johnson claims by arguing that a prior conviction that had not been designated during the sentencing proceeding should have been counted as an ACCA predicate. But last week the 4th Circuit said Hodge was different, and upheld Clint’s new 15-year sentence.

In Hodge, the Circuit ruled, “we explained that defendants have a right to adequate notice of the government’s plan to seek an ACCA enhancement and of the convictions that may support that enhancement” (typically done by listing the supporting convictions in the PSR). When the government opposed a § 2255 motion by arguing that there were other convictions that could have been used to support an ACCA, the Circuit said, it shifted the burden of proof: while “at the sentencing the government has the burden of proving the defendant has three prior ACCA-qualifying convictions… on collateral review, the defendant has the burden of proving that the convictions supporting his ACCA enhancement are infirm.”

The Hodge concerns, however, do not arise in a full resentencing like the one Clint got. ‘The court conducted a full sentencing hearing, at which it received evidence and made findings of fact,” the Circuit said. Unlike Hodge, Clint “had adequate notice of the designated predicate convictions, giving him a full opportunity to challenge them. Moreover, the 2019 sentencing proceeding was conducted under the burdens of proof applicable in every sentencing, and our review is conducted under direct appeal standards, rather than on standards applicable to review of collateral proceedings.”

United States v. Rumley, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 13, 2020)

– Thomas L. Root